United States District Court, E.D. Pennsylvania
FRANK T. BRZOZOWSKI
PENNSYLVANIA TURNPIKE COMMISION, et al.
T. Brzozowski is a 63-year-old man who worked for over ten
years with the Pennsylvania Turnpike
Commission. A long-time toll collector, the Commission
promoted him over two women applicants to an Executive
Assistant position in its Office of Diversity and Inclusion
in April 2012. Well over a year later in Fall 2013, Mr.
Brzozowski applied for several other positions, including as
an Executive Assistant in the Commission's Information
Technology Department. In December 2013, following an
investigation into his workplace conduct unrelated to his
pending applications for other positions, the Commission
fired Mr. Brzozowski from his Executive Assistant position in
the Commission's Office of Diversity and Inclusion. In
February 2014, a couple months after firing Mr. Brzozowski,
the Commission hired a younger woman applicant already
working for the Commission as the Executive Assistant of the
sues the Commission for age and gender discrimination for
first firing him after an investigation and then refusing to
hire him months after his firing and instead hiring a woman.
Following discovery, Mr. Brzozowski fails to meet his
prima facie proofs for discrimination or adduce
genuine issues of material fact demonstrating the
Commission's legitimate employment reasons are pretext
for discriminatory animus towards him based on his age and
2003, the Commission hired Mr. Brzozowski as a supplemental
toll collector. A few months later, the Commission moved
Mr. Brzozowski to a data assistant specialist job in the
network control office. Mr. Brzozowski worked as a data
assistant specialist for about thirty days before moving back
to his initial toll collector job for personal
nine years into his tenure as a toll collector, Mr.
Brzozowski applied for an Executive Assistant position in the
Commission's Office of Diversity and Inclusion in January
2012. The Commission received eleven
applications for the position. The Commission considered eight
applicants "qualified," including Mr.
Brzozowski. In March 2012, a three-person panel,
including Director of the Commission's Office of
Diversity and Inclusion, Myneca Ojo, interviewed the
qualified applicants. After interviews, Director of Diversity
Ojo recommended Mr. Brzozowski and two female applicants for
the position. The Commission offered Mr. Brzozowski
the job over the two qualified female applicants; Mr.
Brzozowski accepted thejobonApril9, 2012."
2013, while in the Executive Assistant job, Mr. Brzozowski
applied to other Commission positions: Facilities Security
Technician, Custodial Supervisor, Human Resources Specialist
1 - Compensation and Leave, Human Resources Specialist 3 -
Compensation, and Executive Assistant in the IT
Department. To determine Mr. Brzozowski's
fitness for the jobs, the Commission scheduled for Mr.
Brzozowski to undergo Microsoft testing and an interview on
December 11, 2013. The Commission assigned Human Resources
Testing Administrator, Dorothy Ross, to administer the
Microsoft testing. Administrator Ross had administered
tests to Mr. Brzozowski in the past.
prepare for the training and interview, Mr. Brzozowski stayed
overnight at the Commission's Central Administration
Building on December 10, 2013. Lewis Jack, a
Maintenance/Repair Manager, saw Mr. Brzozowski sleeping in a
cubicle at work around 3:55 AM. Mr. Jack took a
photograph of the incident and sent it to the
Commission's Human Resources Department. The
Commission's compliance department showed the photograph
to Director of Diversity Ojo.
morning after sleeping over at work, Mr. Brzozowski sat for
the Microsoft Word and Excel qualification test administered
by Administrator Ross on December 11, 2013. Mr.
Brzozowski arrived to the test ten minutes
late. He appeared with a pencil, watch, and
Microsoft Excel book. Administrator Ross told Mr.
Brzozowski he could not use the Microsoft Excel book during
testing. Then, according to Administrator Ross,
Mr. Brzozowski threw the book across the table at her and
then behaved in an intimidating manner towards
the Microsoft testing, the Director of Human Resources
Patricia Schlegel, a Human Resources Manager Judy Treaster,
and Director of Diversity Ojo held a pre-disciplinary meeting
to investigate a claim Mr. Brzozowski stayed overnight at
work. At this meeting, Mr. Brzozowski admitted
he had stayed overnight to prepare for the interview and
training session.Mr. Brzozowski also admitted he would
stay overnight at work during bad weather. Manager
Treaster prepared the materials and conducted the
next morning, Administrator Ross emailed Human Resources
Director Schlegel describing the Microsoft training incident
with Mr. Brzozowski:
12/11/13, 1 was administering Frank Brzozowski's
exercises for his HR Specialist 1 interview. He made me feel
very uncomfortable and scared regarding the following:
• He was 10 minutes late
• In his possession he had a stop watch, cell phone, and
an Excel Manual
• I told him that I was timing him with a stop watch,
and he said, "I don't care. I need to compare your
time with my time." I did not respond.
• When I returned to set him up for the third exercise,
I stood up to leave the room and I said that he was not to
use the Excel manual as a cross reference. He took the manual
and whipped it across the table and gave me a terrible glare.
I was very scared.
I must be a magnet for abusive men in the workplace. First
Brian, now Frank! Unbelievable.
response, Human Resources Director Schlegel wrote to
Administrator Ross: "I will take care of this from
here." Human Resources Director Schlegel
referred this incident to Manager Treaster to
the same day, Manager Treaster, Human Resources Director
Schlegel, and Director of Diversity Ojo convened a second
panel disciplinary hearing about the incident with
Administrator Ross. Mr. Brzozowski claims he only "slid
the book to the end of the table."Mr. Brzozowski
admitted "he was pacing around her" and "may
have glared at her." The panel also asked Mr.
Brzozowski about his use of his work computer for personal
reasons. Mr. Brzozowski admitted he occasionally
used his computer for personal reasons, including checking
his personal bank account. After the meeting, the
Commission suspended Mr. Brzozowski.Mr. Brzozowski removed his
personal belongings from the building, including several bags
of clothes, food, and two lockers of items.
Commission fires Mr. Brzozowski for violating Commission
weeks later, Human Resources Director Schlegel told Mr.
Brzozowski the Commission fired him because:
• "The investigation of your workplace behavior
documented several serious breaches of Pennsylvania Turnpike
Commission (PTC) policies including but not limited to your
use of PTC property for lodging purposes, your excessive use
of the PTC computer system for personal use and your
intimidating behavior at a Microsoft exercise. Each of these
actions is in and of itself grounds for discipline, including
termination. Therefore, your employment with the Commission
is terminated effective the close of business on Thursday,
December 12, 2013."
• "[Y]ou admitted to spending the night in your
work area on December 10, 2013."
• "You also admitted that you stayed late or
overnight to use the computer system to look up information
for a civil case that you are involved in and to prepare for
the Word and Excel exercises.
• "You violated the Workplace Violence Policy No.
3.7, General Policy by using threatening gestures and facial
grimaces that intimidated another employee at the
• "You violated the Electronic Communications
Acceptable Use Policy, Policy Statement, when you used the
PTC's information system for personal gain.
• "Your actions also violate Commission Policy
Letter No. 3.10 (Code of Conduct), Section X (Job Perforamnce
of Employees), subsection 10.1 which requires employees
perform all assigned duties in a professional manner; 10.2
which requires employees to become familiar with the policies
and regulations of the Commission applicable to his or her
assignment; 10.3 which requires employees to adhere to the
policies of the Commission; and 10.5 which requires employees
to respect the Rules and Regulations of the Commission and
ensure they are administered fairly."
Commission's Chief Executive Officer, Mark Compton,
approved firing Mr. Brzozowski on December 20,
2013. The Commission did not replace Mr.
Brzozowski. Mr. Brzozowski believes the Commission
fired him because he "stood in the way" of an
employee "sponsored" by a political friend of the
Commission. But the Commission did not hire someone
to replace him.
Commission does not hire Mr. Brzozowski as Executive
Assistant of the IT Department.
Commission fired Mr. Brzozowski after he applied for the
Executive Assistant position in the IT Department, along with
107 applicants-ten internal applicants and ninety-eight
external applicants. The Commission's Human Resources
department reviews each application to determine if the
applicant is "qualified" or "not
qualified." The Commission's Human Resources
department considered eighty-nine candidates
"qualified" and nineteen candidates "not
qualified" and referred the qualified applications to
the IT Department for interviews. In February 2014, the IT
Department interviewed twelve of the eighty-nine
Commission did not interview Mr. Brzozowski "because he
had been terminated before [the] scheduled
interviews." Mr. Brzozowski believes he did not
receive an interview because the majority of Executive
Assistants are female. The interview panelists recommended
three candidates: Jeremy Krebs, Debra Shively, and Kristine
Shuller. The panel submitted a review of Ms.
Shuller to the Commission recommending her hire:
Kristine currently works for the Commonwealth's Office of
Administration, IT Department. Kristine's current duties
and responsibilities include support of the Bureau of IT
Procurement as the subject matter expert with IT Procurement
processes and procedures. Kristine also provided
administrative support to the Deputy Secretary for
Information Technology as well as the Assistant CIO for the
Commonwealth Kristine responded very well to interview
questions. She noted she works well independently but also
enjoys working as a team. Kristine also holds a
Bachelor's [sic] of Communications Degree. Krstine's
administrative background as well as her proficiency with the
Microsoft Office Suite and her Information Technology
background makes her an excellent candidate for this
position. Ms. Shuller's salary requirements are at the
entry level of the N-8 salary range.
Commission hired Ms. Shuller on February 18,
2014. No. party identified Ms. Shuller's
Brzozowski sues the his former employer Commission alleging
it discriminated against him on the basis of: (1) his age
when it fired him as Executive Assistant of the Office of
Diversity and Inclusion, (2) his age when it failed to hire
him as Executive Assistant in the IT Department; (3) his
gender when it fired him as Executive Assistant of the Office
of Diversity and Inclusion; and, (4) his gender when it
failed to hire him as Executive Assistant in the IT
Commission moves for summary judgment arguing Mr. Brzozowski
cannot establish a prima facie case for any claim
and, even if he could make a prima facie case, Mr.
Brzozowski fails to meet his burden of proving the
Commission's legitimate non-discriminatory reasons for
its actions were pretext for discriminatory discharge. We
find Mr. Brzozowski fails to meet his burden of establishing
a. prima facie case for each age and gender
discrimination claim. Even if Mr. Brzozowski establishes
aprima facie case, the undisputed material facts
confirm no factfinder could reasonably find the
Commission's legitimate non-discriminatory reason for his
termination is pretext for age or gender discrimination. This
failure warrants the entry of summary judgment for the
We grant summary judgment for the Commission on Ms.
Brzozowski's age discrimination claims.
Brzozowski asserts two claims of age discrimination. Mr.
Brzozowski claims the Commission discriminated based on his
age when terminating him as the Executive Assistant with
Office of Diversity and Inclusion and when it did not hire
him as Executive Assistant in the IT Department and instead
hired a younger female applicant for the position.
a prima facie case of age discrimination under the
ADEA, Mr. Brzozowski must show he "(1) is 40 years of
age or older; (2) was qualified for the position in question;
(3) was subject to an adverse employment action despite being
qualified; and (4) was subject to the adverse action under
circumstances that raise an inference of
discrimination." We may draw the inference from a
showing the employer did not similarly treat similarly
situated employees outside of the protected
class. Under the well-settled McDonnell
Douglas standard, if Mr. Brzozowski establishes a
prima facie case of age discrimination, the burden
shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment
action. If the Commission meets this burden, the
burden shifts back to Mr. Brzozowski to show, by a
preponderance of the evidence, the Commission's proffered
reason for the decision is a pretext. Mr.
Brzozowski must prove age was the "but-for" cause
of the employer's adverse decision.
establish pretext, Mr. Brzozowski "must point to some
evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
action." If Mr. Brzozowski's evidence relates
to the credibility of The Commission's proffered
justification, he "must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could
rationally find them 'unworthy of
credence.'" If Mr. Brzozowski comes forward with
sufficient evidence to allow a factfinder to discredit The
Commission's proffered justification, he "need not
present additional evidence of discrimination beyond [his]
prima facie case to survive summary judgment"
because "the factfinder may infer from the combination
of the prima facie case, and its own rejection of
the employer's proffered reason, that the employer
engaged in the adverse employment action for an invidious
Commission seeks summary judgment seeking to dismiss both age
discrimination claims. Applying the summary judgment standard
and viewing the underlying facts and all reasonable
inferences therefrom in the light most favorable to him, Mr.
Brzozowski fails to meet his prima facie burden for
the termination and failure to hire claims. Even if we assume
Mr. Brzozowski meets his burden, we find the Commission had
legitimate, nondiscriminatory reasons for terminating Mr.
Brzozowski from the Executive Assistant of Office of
Diversity and Inclusion and for not hiring Mr. Brzozowski as
Executive Assistant of the IT Department. Mr. Brzozowski
fails to show these legitimate reasons are mere pretext for
discriminatory animus. The Commission is entitled to judgment
as a matter of law on Mr. Brzozowski's age discrimination
Mr. Brzozowski did not adduce facts of prima facie
age discrimination leading to his
Brzozowski must adduce evidence of a prima facie
case to withstand summary judgment. The Commission agrees Mr.
Brzozowski meets the first three elements of a prima
facie case but argues Mr. Brzozowski cannot establish it
replaced him with "a sufficiently younger person to
permit an inference of age
discrimination." The Commission argues it did not
replace Mr. Brzozowski with a sufficiently younger person-in
fact, the Commission argues it did not hire anyone
to replace Mr. Brzozowski.
record is devoid of evidence of anyone replacing Mr.
Brzozowski, much less anyone sufficiently younger to support
an inference of discrimination. Director of Diversity Ojo
swore the Commission's Office of Diversity and Inclusion
now only has two employees and currently does not employ an
Executive Assistant. Mr. Brzozowski does not adduce evidence
of a sufficiently younger replacement-or any replacement at
all-in his response to summary judgment. Mr. Brzozowski does
not address this claim at all.
factfinder could reasonably find the Commission replaced Mr.
Brzozowski with an employee sufficiently younger to support
an inference of discriminatory animus. It did not
hire anyone to replace him.
a plaintiff fails to raise a genuine dispute of material fact
as to any of the elements of the prima facie case,
[he] has not met [his] initial burden, and summary judgment
is properly granted for the defendant." Mr.
Brzozowski fails to satisfy the fourth element of the
prima facie case. He has not met the initial burden. We
grant summary judgment to the Commission on his age
discrimination claim for his firing.
Brzozowski did not adduce facts of prima facie age
discrimination in hiring for the IT
Commission argues Mr. Brzozowski did not adduce facts meeting
his prima facie case for age discrimination for
failure to hire. In the failure to hire context, Mr.
Brzozowski must adduce facts allowing us to infer
discrimination by showing the Commission treated a similarly
situated comparator outside of the protected class
differently. The Commission argues Mr. Brzozowski
cannot meet this burden because the successful candidate for
the IT Department's Executive Assistant (Ms. Shuller) is
not a comparator to Mr. Brzozowski. Mr. Brzozowski argues Ms.
Shuller is not only a comparator, but less qualified, which
"illuminates the age discrimination that took place
Court of Appeals requires comparator employees to be
similarly situated in all relevant respects. "The
Court of Appeals for the Third Circuit does not require a
plaintiff to show that the comparators are identical in all
relevant respects, but only that they are alike in all
relevant respects." "Determining whether an
individual 'similarly situated' to another individual
is a case-by-case, fact sensitive inquiry," when
"the focus is on the particular criteria or
qualifications identified by the employer as the reason
for" the employment decision.
Royster, an African-American female over forty years
of age alleged a Pennsylvania school district failed to hire
her as superintendent due to her race, gender, and age. The
school district considered three candidates for
superintendent: three Caucasian males in their forties and
internal employees with advanced degrees paid for by the
district. Plaintiff did not work for the district nor did she
receive an advanced degree paid for by the district. The
court found "the three Caucasian, male candidates ...
are not similarly situated to [plaintiff] because each was a
then-current employee of the School District who received
financial assistance from the School District in obtaining
his advanced degree or certification
papers." The court found the plaintiff failed to
establish a prima facie case.
to whether Ms. Shuller and Mr. Brzozowski are alike in all
relevant respects. The Commission argues they are not because
Mr. Brzozowski had been fired for cause by the time it
interviewed candidates for the IT Department Executive
Assistant. We agree. As with the plaintiff-employee in
Royster, a former employee previously fired for
cause is not relevant in all respects to a prospective
employee not fired for cause. The Commission fired Mr.
Brzozowski in December 2013. The Commission did not interview
for this position until February 2014. Mr. Brzozowski, while
qualified for the position, ceased to be similarly situated
to Ms. Shuller after being fired for cause.
Brzozowski responds: "To accept defendants [sic] fatally
flawed theory would mean that all an employer would have to
do to eliminate all comparators would be to first fire the
employee and then hire an outside
candidate." We do not follow this rationale. We do
not see why an employer would terminate an employee just
to-maybe somewhere down the road-use this fact to defend a
potential lawsuit in a potential employment discrimination
case. An employer may use its discretion in hiring decisions
if it is not discriminatory. There is no dispute as to a
material fact. Mr. Brzozowski, an employee terminated for
cause, is not a similarly situated employee to Ms. Schuller.
Mr. Brzozowski fails to meet his prima facie case of
age discrimination on failure to hire for the Executive
Assistant in IT position.
Brzozowski fails to adduce facts of pretext for his
age discrimination claims.
we find Mr. Brzozowski satisfied his prima facie
burden, he still failed to adduce facts defeating summary
judgment on his age discrimination claim. The Commission
articulates legitimate, non-discriminatory reasons for firing
Mr. Brzozowski: he slept overnight at work, an employee felt
threatened by him, and he violated the Commission's
computer use policy.
the Commission offers legitimate, non-discriminatory reasons,
Mr. Brzozowski must then prove by a preponderance of the
evidence that these reasons are not the true reasons but are
instead pretext for discrimination. "[T]o defeat summary
judgment when the [employer] [articulates] legitimate
nondiscriminatory reasons for its action, the plaintiff must
point to some evidence, direct or circumstantial, from which
a factfinder could reasonably either (1) disbelieve the
employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than
not a motivating or determinative cause of the employer's
Brzozowski argues the Commission's four proffered reasons
1. Reason #1: The Commission fired Mr. Brzozowski for
workplace violence. Mr. Brzozowski argues Workplace
Violence Policy 3.7, Example 4, requires the actor
"intend" to "threaten a person." Mr.
Brzozowski argues the undisputed facts demonstrate he did ...